The Pennsylvania Supreme Court wrestled on Wednesday in Philadelphia with how to scrutinize government actions that affect publicly owned natural resources and citizens’ environmental and property rights in two cases with roots in shale gas drilling but with potential repercussions for other forms of development.
Laura Legere of the Pittsburgh Post-Gazette writes today:
During a dynamic morning session that lasted nearly three hours, the justices peppered attorneys on all sides with questions both sweeping and practical — such as whether the environmental rights described in the state constitution are fundamental rights and whether lawmakers have singled out the gas industry for special treatment.
One case, Pennsylvania Environmental Defense Foundation v. Commonwealth, concerns the state’s decision to lease publicly owned forestlands for gas development and use the money to balance budgets.
The other, Robinson Township v. Commonwealth, challenges several provisions in the state’s updated oil and gas law, including the validity of the state’s centralized method of reviewing municipal gas drilling ordinances and limitations on sharing information about gas development fluids that might affect drinking water or public health.
Six of the court’s seven justices heard oral arguments in the cases, including three who were presiding over their first days of arguments since being elected to the high court last year. Justice Michael Eakin, who was suspended in December, did not participate.
The justices seemed inclined to go back to the text of the state’s environmental rights amendment — Article 1, Section 27 of the constitution — to discern what should be expected of the government as the steward of Pennsylvania’s public natural resources. They did not give any clear sign of how they would define those standards.
In a surprising move, one of the Commonwealth’s attorneys Sean Concannon encouraged the court to do away with the current three-part harms and benefits balancing test that has for decades been the shorthand method for judging whether government actions comply with the state’s environmental rights amendment.
But he urged the court to adopt a reasonable replacement that will not stifle economic development or infringe on property rights.